Litigation

NHLP is always on the look-out for opportunities to bring our expertise to bear in impact litigation, both in trial and appellate courts, on important matters relating to housing for low-income individuals and families. This work includes cases strengthening or guarding the rights of tenants and low-income homeowners, advancing or defending protections against unfair discrimination in housing and housing-related services, preserving precious affordable housing stock, and other cases with the potential to significantly affect access to and quality of affordable housing for low-income persons. Hayes v. Harvey (3rd Circuit) defining “good cause” in an enhanced voucher case. McMahon v. JP Morgan Chase (9th Circuit) on the procedural protections in the California Homeowners Bill of Rights Bayview Plaza Tenants Association et al v. Bouma et al– (W.D. Wash.) Suit to enforce the use restrictions following the prepayment of a USDA loan McFalls et al v. Perdue, et al– (D. Or.) Challenging the prepayment of a USDA 515 loan and the legality of the agency’s regulation

Active Cases

Acosta v. Vilsack

Summary:

Action in U.S. District Court for the Northern District of Iowa. Challenges improper prepayment of Section 515 rural housing property, Northpark Apartments of Storm Lake, Iowa, which threatens low-income residents of its 24 subsidized dwelling units with rent increases, displacement, and homelessness. After extensive negotiations, the parties reached a settlement agreement that returned Northpark to the USDA’s 515 program, restored the Rental Assistance that tenants previously received, and ensured that tenants who paid more in rent or utilities were made whole. USDA also agreed to revise its policies in order to protect all tenants who live in USDA 515 housing nationwide including:

initiating proposed rulemaking on the Rural Development Voucher program;
convening a stakeholder listening session and revising tenant notification letters regarding the prepayment of a Section 515 loan and the Rural Development Voucher Program Guide;
translating all tenant notification letters into Spanish; and
issuing guidance reminding their multifamily housing staff and borrowers of their obligations to provide meaningful access to Limited English Proficiency populations.

NHLP staff: Gideon Anders, Marcos Segura, Kate Walz

Partners: Iowa Legal Aid (Alex Kornya, Ericka Petersen, Grant Beckwith)

Documents:

Amos v. Miller

Amicus brief in support of petition for certiorari to the Colorado Supreme Court. Claire Miller was sexually harassed by her landlord. When she rebuffed his demands, he filed a “no cause” eviction case. Ms. Miller argued the eviction was a form of unlawful retaliation for in violation of the federal and Colorado fair housing laws. Yet the trial court ruled that unlawful discrimination is not a cognizable defense to a “no cause ” eviction in Colorado. After an intermediate appellate court affirmed that ruling, Ms. Miller filed a petition for review to the Colorado Supreme Court–and NHLP amicus brief urges the Colorado Supreme Court to hear this important case. The refusal to recognize fair housing defenses undermines the purpose and intent of both anti-discrimination laws and the judicial process itself, and in sexual harassment scenarios enables abusive landlords to weaponize the eviction process as a means of punishing and further harming their victims.

NHLP staff members: Sarah Brandon, Marie Claire Tran Leung, Kate Walz, Eric Dunn

Arroyo v. Corelogic Rental Property Solutions, LLC

U.S. District Court – District of Connecticut Cause No. 3:18-cv-00705-VLB Filing Date: April 24, 2018 Claims: Fair Housing Act, Fair Credit Reporting Act, Connecticut Unfair Trade Practices Act Partners: Connecticut Fair Housing Center NHLP Role: Co-Counsel for Plaintiffs Documents:

Brumit v. Granite City

Amicus Brief in Seventh Circuit Court of Appeals case of Brumit v. Granite City.

NHLP staff: Kate Walz and Eric Dunn

CARE v. Vilsack

Appeal to Ninth Circuit regarding the dismissal on mootness grounds of an action challenging the Rural Development program’s improper policies and practices for considering requests to prepay Section 515 housing developments. After RD unlawfully approved the prepayment of a Section 515 property (Golden Eagle) in Tillamook County, Oregon, four residents of the property and Community Action Resources Enterprises, Inc. (CARE), brought a challenge to the RD practices that allowed the prepayment to occur. RD then reconsidered the repayment request and took further action, eventually resulting in the sale of the property to a new owner and the recording of extended low-income use restrictions through 2051. But RD did not change any of its rules or procedures for considering pre-payment requests. Appeal taken after District Court found the sale and preservation of Golden Eagle mooted the case even though RD’s ongoing deficiencies threaten harm to CARE given the significant number of other Section 515 properties eligible for prepayment in and around Tillamook County. Advocacy undertaken by Gideon Anders of NHLP with Michael Pijanowski, Richard Peel, and Ed Johnson of Oregon Law Center.

Appellant’s opening brief

Appellee’s response

Appellant’s reply

de Reyes v. Waples Mobile Home Park

Amicus Brief in Fourth Circuit Court of Appeals case of de Reyes v. Waples Mobile Home Park challenging a mobile home park’s policy of requiring all residents to present proof of U.S. citizenship or immigration status, contrary to the Fair Housing Act. NHLP’s brief shows how Congress could not have intended for the anti-harboring act (8 U.S.C. sec 1324) to require landlords to inquire into the citizenship or immigration status of every household member because Congress has authorized a number of federal housing and benefits programs that impose no immigration eligibility requirements and, in some cases, specifically allow mixed-status families (i.e., families with both U.S. citizens or eligible immigrants and household members without eligible status) to live together.

NHLP staff: Kate Walz, Natalie Maxwell, Eric Dunn

El Papel v. City of Seattle

Amicus brief filed in Ninth Circuit seeking to affirm trial court’s ruling that the State of Washington’s eviction moratorium during Covid-19 was not a taking. Brief explains how temporarily disallowing the eviction of tenants that landlords voluntarily admitted to rental properties is neither a physical taking nor an excessively onerous regulation under the regulatory takings test set forth in Penn Central Transportation Co. v. City of New York, 438 U.S. 104 (1978). Brief drafted by Democracy Forward Foundation and filed on behalf of NHLP, Appleseed Foundation, Alliance for Justice, International Municipal Lawyers’ Association, Lawyers’ Committee for Civil Rights under Law, and Western Center on Law & Poverty.

Flint Rising et al. v. Genesee Township

Complaint to the U.S. Dept. fo Housing & Urban Development on behalf of community organizations in a suburb of Flint, Michigan, that challenges the approval and development of a new asphalt plant that will release toxic emissions from a site within 1600 feet of existing public housing and a low-income, primarily Black neighborhood. Alleges violations of Title VI, the Fair Housing Act, and the Housing & Community Development Act. Partners include Earth Justice and the Great Lakes Environmental Law Center.

Complaint

Louisiana Fair Housing Action Center v. Azalea Garden Properties LLC

Amicus brief in U.S. Court of Appeals for the Fifth Circuit case Louisiana Fair Housing Action Center vs. Azalea Garden Properties, LLC, which challenges a landlord’s broad policy of denying admission to rental applicants with criminal records due to the disparate impact that policy has on African-American renters. Though in practice the landlord denies applicants for arrest records and many kinds of misdemeanor convictions as well, the landlord’s written policy excludes applicants with any kind of felony conviction. NHLP’s brief focuses on how even the written policy is indefensibly broad because the characterization of an offense as a “felony” provides little insight into whether a criminal record reflects a demonstrable risk to safety or property–especially in Louisiana, which lacks any system for further classifying or grading felony crimes. Also discusses how the landlord’s use of a third-party tenant-screening company does not diminish the landlord’s own responsibility not to engage in race discrimination in selecting tenants.

NHLP Staff members: Marie Claire Tran Leung, Sarah Brandon, Eric Dunn

Sherwood Auburn LLC v. Pinzón

Amicus brief on behalf of National Housing Law Project, Mobilization for Justice, and Professor Kathryn A. Sabbeth explaining why unlawful detainer action for nonpayment of rent should be dismissed where property is covered by the CARES Act notice provision (15 U.S.C. sec. 9058(c)) and landlord served simultaneous notices directing the tenant to pay-or-vacate within 14 days and stating that, if tenant failed to do so, an eviction lawsuit could be filed pursuant to which the tenant could be physically removed after 30 days. Shows how the notices are misleading and inconsistent with Washington state law, and describes adverse public policy implications from allowing landlords to commence unlawful detainer proceedings without affording the full 30 days’ notice required by federal law. NHLP staff Marie Claire Tran Leung, Sarah Brandon, and Eric Dunn worked on the brief with partners Andrew Darcy of Mobilization for Justice (NYC) and Kathryn Sabbath of UNC Law School, and Joe Shaffer and Tiffany Cartwright of MacDonald, Hogue & Bayless in Seattle.

Published Opinion. Washington Court of Appeals decision reversing the eviction judgment and remanding for entry of dismissal. Court ruled that landlord’s eviction notices–one giving 14 days’ notice to pay or vacate, and the other stating that tenant could be judicially evicted after 30 days unless the tenant vacated sooner–were ineffective to establish a cause of action for unlawful detainer in a property subject to the CARES Act because “the conflicting notices … were misleading and equivocal and failed to adequately, precisely, and correctly inform the tenants of the rights to which they were entitled.”

Stiner v. Brookdale Senior Living LLC

Amicus brief in Ninth Circuit Court of Appeals in support of petition appealing the denial of class certification in a case challenging a senior housing provider’s failure to remove access barriers in multiple facilities. The District Court denied certification because the facilities did not share a common blueprint or design characteristics, and did not arise from centralized decisionmaking. Amicus brief argues that the the violations did result from a “policy and practice of disregarding the existence of access barriers and of failing to remove them,” however, which provided sufficient commonality for class certification. Amicus brief details various types of settings, including subsidized housing, in which the ability to secure class certification for injuries resulting from a common policy applied across multiple facilities is essential to enforce basic rights and protections.

Yim v. City of Seattle

U.S. District Court – Western District of Washington Cause No. 2:18-cv-736-JCC Issue: constitutionality of Seattle’s “Fair Chance Ordinance,” which prohibits the denial of rental housing based on most criminal records. Partners: Sargent Shriver National Center on Poverty Law NHLP Role: Amicus Curiae in support of City of Seattle Documents: Brief of Amicus Curiae

Ninth Circuit brief

Ninth Circuit opinion affirming in part and reversing in part. By a 2-1 vote, the decision affirms the dismissal of the landlords’ due process claims but finds that the provision of the Seattle Fair Chance Housing Ordinance that prohibits landlords from inquiring into rental applicant criminal history violates the First Amendment. Judge Wardlaw, writing for the majority, ruled that such inquiries are commercial speech subject to intermediate scrutiny, with which Judge Gould agreed. Judge Bennett would have applied strict scrutiny to such inquiries. However, Judges Wardlaw disagreed with Judge Gould that Seattle had shown a reasonable fit between the means (restricting inquiries about criminal history in rental admission settings) and the objective (increasing housing opportunities for returning citizens). Therefore Judge Wardlaw joined with Judge Bennett in finding the inquiry provision unconstitutional. The court remanded the case to the trial court for a determination of whether the inquiry provision may be severed from the remainder of the ordinance, which prohibits the use of criminal records as a basis for denying admission.

Note: after the decision was issued, both the City and Yim jointly moved for additional time to file petitions for review en banc, which are anticipated by April 18, 2023.

Z.A. v. F.T.

Amicus Brief in California Court of Appeals (3rd Dist) involving domestic violence survivor who lost her home she shared with her child after the trial court altered a protective order, by limiting the duration from five years to three years, and removing the provision that required the perpetrator, pursuant to California’s Domestic Violence Prevention Act, to pay the mortgage. NHLP’s amicus brief, on behalf of NHLP and eleven other amici, focused on the impact of economic abuse on survivors of violence, and how financial abuse and exploitation, like not paying the mortgage or rent, have their intended purpose, to force the survivor to remain with the perpetrator. The brief also discusses the unique challenges posed for survivors when there is a mortgage in the perpetrator’s name, outlines the legislative history behind California’s Domestic Violence Protection Act’s comprehensive relief provisions that enable survivors to get necessary, economic relief when seeking a protective order, and explains how California’s laws are consistent with the broad housing and economic protections provided to survivors in several other states. NHLP staff Kate Walz, Lila Gitesatani, Lisa Sitkin, Kelark Azer Habashi, and Allan Manzanares participated in drafting and preparing the brief.

Inactive Cases

Apartment Assn. of Greater Los Angeles v. City of Los Angeles

Summary:

Action originally filed in U.S. District Court for the Central District of California. Challenged Los Ángeles Ordinance No. 186585, which imposes a local moratorium on residential evictions motivated either by financial causes, minor lease violations, or without fault of the tenant in City of L.A. The challengers failed to secure a preliminary injunction and appealed to Ninth Circuit, which affirmed. Challengers have petitioned for certiorari to U.S. Supreme Court but certiorari was denied at 142 S.Ct. 1699 (Mem), 212 L.Ed.2d 595 (Apr. 18, 2022).

NHLP staff: Deborah Thrope, Eric Dunn

Documents:

Aswan Village Associates, LLC v. Opa Locka CDC, Inc.

Summary:

Action originally filed in Circuit Court for Miami-Dade County in Florida, concerning the right of a nonprofit community development corporation to exercise its federal statutory right of first refusal by which to retain complete long-term ownership and control of a low-income housing tax credit property. Trial court ruled in favor of the community development corporation, and investors who sought to deny the CDC’s attempt to purchase the property appealed. Florida Court of Appeals summarily affirmed.

NHLP staff: Marcos Segura

Documents:

Bayview Plaza Tenants Assn. v. Bouma

Summary:

Action filed in U.S. District Court for Western District of Washington, challenging the prepayment of two USDA Section 515 properties in Blaine, Washington. The buildings included fifty-four units of senior/disabled housing, all with rental assistance—and the tenants were mostly very-low-income residents and nearly all elderly single women. USDA approved the prepayment subject to use restrictions, but failed to notify tenants or enforce the restrictions them—including by allowing owner to raise rents and utility charges, decline lease renewals, and impose onerous new lease terms. The tenants formed two tenant associations and sought representation from Northwest Justice Project to challenge the new leases and rent increases. NJP partnered with NHLP (Gideon Anders) to file suit for a temporary restraining order and preliminary injunction to enforce the use restrictions, enjoin the new leases and increased rents, and require USDA to comply with federal law in notifying tenants about future prepayments.

After entry of an agreed TRO, the parties reached a settlement that prevented rent increases and resulted in the return of both properties to the Section 515 program through 2032 (when the original loans had been scheduled to mature). This preserved the affordable housing and rental assistance. However, the court then found the remaining claims seeking to improve USDA practices nationwide to be moot.

Documents:

Order of dismissal (finding remaining claims against USDA moot)
Article by Kelly Owen and Scott Crain of Northwest Justice Project, “Rural Housing in the Crosshairs: How USDA Affordable Housing Is Targeted for Market Rate Conversion and What Advocates Can Do to Preserve It,” 30 J. of Affordable Hsg. 78 (2021) (discussing BPTA v. Bouma case extensively)

Boston Housing Authority v. Y.A.

Supreme Judicial Court of Massachusetts Cause No. SJC-12623 Issues: (1) whether the Violence Against Women Act can be a defense to eviction from public housing for nonpayment of rent when a survivor’s failure to pay rent and arrearages was the direct result of a physically, emotionally, and financially abusive relationship; and (2) whether a public housing authority can lawfully require a survivor to obtain a restraining order against her abuser to avoid eviction from public housing. Partners: ACLU Women’s Rights Project, ACLU of Massachusetts, Sargent Shriver National Center on Poverty Law NHLP Role: Amicus Curiae in support of Y.A. Documents: Brief of amici curiae

Brown v. Azar

Amicus Brief (and attachment) filed in the Northern District of Atlanta in opposition to the plaintiffs’ motion for preliminary injunction in the first of numerous civil actions challenging the CDC’s temporary halt on evictions. Advocates from Legal Services of Northern Virginia, Atlanta Legal Aid, and NHLP collaborated on the brief. The court subsequently denied the preliminary injunction, Brown v. Azar, 497 F. Supp. 3d 1270 (N.D. Ga. 2020), aff’d sub nom. Brown v. Sec’y, U.S. Dep’t of Health & Hum. Servs., 4 F.4th 1220 (11th Cir. 2021), vacated, 20 F.4th 1385 (11th Cir. 2021), and appeal dismissed sub nom. Brown v. Sec’y, U.S. Dep’t of Health & Hum. Servs., 20 F.4th 1385 (11th Cir. 2021).

Chambless Enterprises v. Walensky

Amicus Brief filed April 28, 2021, by Southeast Louisiana Legal Services, Acadiana Legal Services, Southern Poverty Law Center, and National Housing Law Project in support of affirming trial court decision in Chambless Enterprises, LLC v. Redfield, 508 F.Supp.3d 101 (W.D.La. 2020), which had denied a preliminary injunction prohibiting enforcement of the CDC halt order.

Fletcher Properties et al. v. City of Minneapolis

Minnesota Court of Appeals Case No. A18-1271 Issue: constitutionality of Minneapolis Ordinance No. 2017-078, which prohibits discrimination housing based on the use of housing vouchers or other “public assistance” benefits to pay rent. Partners: Poverty & Race Research Action Council, Housing Justice Center NHLP Role: Amicus Curiae in support of City of Minneapolis Documents: Brief of Amicus Curiae

KC Tenants v. Byn

Amicus Brief filed in the Western District of Missouri, in support of preliminary injunctive relief in KC Tenants v. Byrn, an action which challenges a local administrative order authorizing landlords to file eviction lawsuits and prosecute them to judgment in Jackson County, MO, as well as secure evidentiary hearings in which to contest the veracity of tenant “covered person” declarations given to invoke protection of the CDC halt order. Advocates from Legal Aid of Western Missouri, Legal Services of Eastern Missouri, and NHLP collaborated on the brief. Injunction was regrettably denied. KC Tenants v. Byrn, 504 F. Supp. 3d 1026, 1027 (W.D. Mo. 2020), vacated, No. 4:20-CV-00784-HFS, 2022 WL 3656453 (W.D. Mo. Aug. 24, 2022).

Kontur v. Riverfront Apartments LP

U.S. District Court – Northern District of Ohio Cause No. 3:19-cv-00248 Filing Date: February 1, 2019 Claims: Declaratory Judgment Partners: Advocates for Basic Legal Equality, Inc. NHLP Role: Co-Counsel for Plaintiffs Documents:

Complaint

Matorin v. Executive Office of Housing & Economic Development

Amicus Brief filed in Matorin v. Executive Office of Housing & Economic Development, a lawsuit that challenged that state’s now expired moratorium on “non-essential” eviction proceedings. Principally authored by NHLP with assistance from Joseph Sherman of MetroWest Legal Services in Framingham, Massachusetts. Order denying preliminary injunction. Opinion by Judge Paul Smith denying the landlords’ preliminary injunction motion. Ruling finds landlords unlikely to succeed on any of their claims, that they presented to basis for finding they would suffer irreparable harm in the absence of relief, and that the public interest weighed heavily against injunctive relief. Note: considered only state law theories as landlords had voluntarily dismissed their federal claims before the ruling. Those federal claims were re–filed in a U.S. District Court action, which also rejected the landlords’ claims. See Baptiste v. Kennealy, 490 F. Supp. 3d 353 (D. Mass. 2020).

Moore v. Johankneckt

Amicus brief in challenge to Washington statute RCW 59.18.375, which requires tenants in nonpayment eviction cases either to pay the amount of disputed rent into court or file a sworn statement denying the rent is owed. Failure to comply with the statutory requirement results in the issuance of a writ of restitution to remove the tenant without a hearing being held. Brief explains that numerous defenses can exist by which tenants may prevail in eviction cases, even if they cannot deny owning the unpaid rent for which the case is filed.

Order reversing trial court’s dismissal of the action without reaching the merits.

Moretalara v. Boston Housing Authority

Coming Soon

Senior Housing Assistance Group v. AmTax Holdings 260, LLC

U.S. District Court – Western District of Washington Cause No. 2:17-cv-01115-RSM Issue: whether the “special right of first refusal” the Low-Income Housing Tax Credit statute (at 26 U.S.C. § 42(i)(7)) gives non-profit housing providers to them a right to purchase those properties and thus maintain the long-term affordability of LIHTC properties. Partners: LeadingAge NHLP Role: Amicus Curiae in support of Senior Housing Assistance Group Documents: Proposed brief of amici curiae

Skyworks v. Centers for Disease Control & Prevention

Amicus Brief filed in the Northern District of Ohio in opposition to the plaintiffs’ motion for preliminary injunction in Skyworks Ltd. v. CDC one of numerous U.S. District Court lawsuits challenging the CDC temporary halt on evictions. Advocates from Community Legal Aid Services, Inc., and NHLP collaborated on the brief. Court ruled that CDC was without power to impose the eviction halt but denied injunctive relief. Skyworks, Ltd. v. Centers for Disease Control & Prevention, 524 F. Supp. 3d 745, 748 (N.D. Ohio), order clarified, 542 F. Supp. 3d 719 (N.D. Ohio 2021), appeal dismissed, No. 21-3563, 2021 WL 4305879 (6th Cir. Sept. 21, 2021), and appeal dismissed, No. 21-3443, 2021 WL 4352384 (6th Cir. Sept. 3, 2021).

Terkel v. Centers for Disease Control & Prevention

Amicus Brief filed by National Housing Law Project in support of reversing trial court decision in Terkel v. CDC, 521 F.Supp.3d 662 (2021), which issued a declaratory judgment finding the CDC eviction halt impermissible under the Commerce Clause. Appeal dismissed voluntarily for mootness after U.S. Supreme Court decision in Alabama Ass’n of Realtors v. Dep’t of Health & Hum. Servs., 210 L. Ed. 2d 856, 141 S. Ct. 2485 (2021). Terkel v. Centers for Disease Control & Prevention, 15 F.4th 683, 684 (5th Cir. 2021).

Tiger Lily LLC v. HUD

Amicus Brief filed in the Western District of Tennessee in opposition to the plaintiffs’ motion for preliminary injunction in Tiger Lilly LLC v. HUD, one of multiple U.S. District Court lawsuits challenging the CDC temporary halt on evictions. Filed with the assistance of Butch, Porter & Johnson, PLLC. Preliminary injunction denied by Tiger Lily LLC v. United States Dep’t of Hous. & Urb. Dev., 499 F. Supp. 3d 538, 542 (W.D. Tenn. 2020). (Note, however, that the same court later ruled the CDC eviction halt unconstitutional under the Administrative Procedures Act and permanently enjoined enforcement in the Western District of Tennessee. See Tiger Lily, LLC v. United States Dep’t of Hous. & Urb. Dev., 525 F. Supp. 3d 850 (W.D. Tenn.), aff’d, 5 F.4th 666 (6th Cir. 2021).)

Yarbrough v. Decatur Housing Authority

U.S. Court of Appeals for the Eleventh Circuit Cause No. 17-11500 Issue: In the Housing Choice Voucher program, HUD rules require a housing authority to prove the grounds for terminating a family’s assistance by a preponderance of evidence in a so-called “informal hearing” at the housing authority before assistance may be terminated. The issue in this case, being heard en banc after a panel opinion in the tenant’s favor, is whether a family has a right to challenge a voucher termination in court if the PHA hearing officer upholds the termination even though the housing authority fails to prove that violation by the preponderance of evidence. NHLP Role: Amicus Curiae in support of Appellant Yarbrough Documents: